The recent report of snooping on Gitmo defense lawyers by the FBI is disturbing, to say the least. More than twelve and a half years after 9/11, the special-purpose tribunals for trying those of the perpetrators in U.S. custody still appear to be a work in progress. As discussed in the NY Times story linked above, not only are defense lawyers and their staff being surveilled by the FBI, but the CIA had been secretly afforded the ability to cut the courtroom video feed based on its own determination of national security, quite apart from the determinations of the presiding military judge.
It is tempting to see these missteps as evidence that the current Gitmo process, while affording more protection for defendants than the original system devised by the Bush Administration, remains essentially a system of kangaroo courts. And it may well be. But there is something else that is wrong with the system: It was built mostly from the ground up. We might thus criticize the military justice system that has been constructed at Gitmo on Burkean grounds.
In offering a Burkean critique of the Gitmo system, I should be clear what ideas I am (and am not) attributing to Edmund Burke. Burke is generally credited with the observation that complex systems--including, especially, legal systems--reflect the accumulated wisdom of the ages, and thus should not be lightly discarded. Although now regarded as the patron saint of conservatism, Burke was in fact a Whig. He did not believe in blindly accepting all inherited traditions, and thus was not against change per se. He was against radical change that uproots whole systems without paying sufficient attention to the interconnection of their moving pieces. He believed in evolutionary rather than revolutionary change.
Now obviously the rules governing trials at Gitmo are not entirely a break with the civilian criminal justice system or the system of trials under the Uniform Code of Military Justice (UCMJ). There are judges, lawyers, rules of evidence, etc., rather than, say, trial by battle or an inquisition. But even if modeled on familiar rules of American justice, the system is stand-alone, so that centuries of precedents--except insofar as constitutionally required, which is itself unclear--do not apply of their own force. To my mind, the money quote from the Times story linked above is this:
Greg McNeal, a former adviser to the top Guantánamo prosecutor, said the military tribunal system was ripe for episodes like the one with the F.B.I. because it is so new. The civilian system and the traditional military judicial system have well-established rules and precedents for handling issues that arise. “Because it’s new and different, they may have a sense that they can get away with things,” Mr. McNeal said.And it's not just that prosecutors have a sense that they can get away with things; everybody is legitimately uncertain about nearly all of the sorts of ancillary questions that are governed by existing precedent in the regular courts.
To be clear, the point is not that our regular approach is perfect; it isn't. But the pieces fit together in ways that have been shown to work, more or less, over time. And where they don't work, there is no shortage of reform proposals.
Thinking about the problem with starting a system of adjudication from scratch can help explain what is otherwise something of a mystery in a different context. In 1937, in Palko v. Connecticut, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not forbid a state from granting the prosecution the right to appeal an acquittal where the prosecution alleges that the trial judge erroneously ruled for the defendant on various procedural questions, even though the Double Jeopardy Clause of the Fifth Amendment would have barred such an appeal by the prosecution in a federal case. The Due Process Clause of the Fourteenth Amendment, Justice Cardozo wrote for the majority, does not impose on the States all of the provisions of the Bill of Rights; it only requires that States respect those rights that are "implicit in the concept of ordered liberty," and granting the prosecution the power to appeal an acquittal does not violate any such right.
The particular holding of Palko was overruled in 1969 in Benton v. Maryland. By that time, the Court was no longer requiring the stringent "implicit in the concept of ordered liberty" test to decide whether a right in the Bill of Rights applies against the States. Instead, the Supreme Court held that nearly all of the provisions of the Bill of Rights are applicable to the states. As the Court explained in 1968 in Duncan v. Louisiana, incorporation should not turn on whether some right is fundamental in some abstract sense--as the Palko test assumes--but instead on whether it is "fundamental to the American scheme of justice."
There is a ready legal realist explanation for the shift: the Warren Court used incorporation to rein in state courts that it regarded as violating civil rights. But what is the intellectual justification for the shift?
I read the shift from Palko to Duncan as a shift to a Burkean perspective. Whereas Cardozo's test required the Court to ask whether an American judicial system could function in a fundamentally fair manner, the Duncan test says that our notions of fair procedure are shaped in and by the system we have, and that even if one particular might be fair in some hypothetical legal system, there is simply too much path dependence in the system we have to draw such conclusions reliably.
Finally, I want to be clear that I'm not saying that the incorporation decisions apply of their own force to military trials at Gitmo. What I am saying is that we appear to be paying a price for the Bush Administration's initial fateful decision to proceed by military tribunal, and for Congress's rejection of the initial Obama/Holder effort to reverse the Bush policy.